USCA1 Opinion

August 6, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1443
TOOLING RESEARCH, INC., ET AL.,
Plaintiffs, Appellees,
v.
TRI-ONICS, INC.,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Cyr, Boudin and Stahl,
Circuit Judges.
______________
____________________
Thomas

E.

Nannicelli

and

Nannicelli

&

Woods

on

brief

______________________
____________________
appellant.
Richard T. Rook on brief for appellee, Tooling Research, Inc.
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____________________
____________________

Per Curiam.
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timely

Appellant claims it

notice of the denial

did not

of its timely

receive

served motion to

amend judgment and for that reason failed to appeal.

Shortly

after

denied,

learning that

appellant asked

the district

appeal under Fed.

denied the
whether

the motion

R. App.

motion without

to amend

court

to reopen

P. 4(a)(6).
stating

appellant had been sent

the motion to amend judgment.

had been

the time

The district

any reasons

or

to

court
finding

notice of the order denying

Appellant now appeals from the

order denying its motion to reopen.

We decline to determine whether the

district court

abused its discretion in denying appellant's motion to reopen

the

time for

appeal, Fed.

R. App.

P. 4(a)(6),

because we

conclude that the time for appealing has not yet commenced to

run and that therefore a timely appeal may be filed.1

The

docket

indicates

endorsed defendant's timely

that

the

district

court

served motion to amend

judgment

as denied and entered the denial on April 13, 1992.

There is

no indication that a separate document embodying the order of

denial

and

complying

with Fed.

R.

Civ.

P.

58 was

ever

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1. We note, however, that the district court docket does not
record notice having been sent to counsel of the April 13,
1992 order denying defendant's motion to amend judgment. See
___
Fed. R. Civ. P. 77(d) (directing clerk to serve notice of
entry by mail and to "make a note in the docket of the
mailing").
This circumstance lends support to counsel's
uncontradicted statement that he did not receive timely
notice of the April 13, 1992 order. In such circumstances,
we would benefit from the district court's statement of
reasons for denying the motion to reopen the time for appeal.
See, e.g., Foster v. Mydas Associates, Inc., 943 F.2d 139,
___ ____ ______
_______________________
141-42 (1st Cir. 1991) (need for findings or reasons in order
to afford informed appellate review).

prepared.

Consequently, the time for

appeal has not expired

because it has not yet commenced to run.

Fiore v. Washington
_____
__________

County Community Mental Health Center, 960 F.2d 229 (1st Cir.

_____________________________________
1992).

To

be

exceptional

sure, in

Fiore
_____

circumstances," a

waiting

a separate

within

three months

we indicated
party wishing

document should
of the

affidavit

appeal and

court's last

order lest

one
he be

Fiore, 960 F.2d at

_____

Here, however, where counsel's uncontradicted

states that he did not receive notice of the April

13, 1992 entry, the

position

to

"absent

ordinarily request

found to have waived his right to appeal.

236 and n.11.

that

district court docket supports counsel's

(see note one), and the district court did not find

that notice was timely

sent, we cannot say that

the failure

to appeal was "a matter of choice, not confusion," Fiore, 960

_____
F.2d at 236 n.11, and we think exceptional
present.

Therefore,

Consequently, as

waiver

will

circumstances are

not

the separate document

be

inferred.

requirement has

not

been satisfied, the time for appealing from the July 29, 1991
judgment

and April

therefore affirm

13,

has

not expired.

the district court's denial

motion to reopen, but

required since the

1992 order

on the ground that no

of appellant's
such motion was

time for appeal had not run.

In re Parque Forestal, Inc.,

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949 F.2d

We

504, 510

See, e.g.,
___ ____
(1st Cir.

1991) (a reviewing court may affirm on grounds different from

those used by the lower court).

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Appellant's

August

25,

manifests an

intention

judgment and

April 13, 1992 order.

served by requiring

to appeal

1992
from

motion

to

the July

29,

As no purpose

appellant to file

reopen
1991

would be

yet another piece

of

paper labelled notice of appeal, we will treat the August 25,

1992

motion as a notice

of appeal.

McMillan v. Barksdale,
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_________

823 F.2d 981, 983 (6th Cir. 1987) (document meeting Rule 3(c)
requirements and
treated
F.2d

as a

manifesting an

notice of

intention to appeal

appeal); Stallworth v.
__________

1409 (11th Cir. 1985).

We transmit

may be

Shuler, 758
______

the motion to the

clerk of the district court with instructions to docket it as

a notice of appeal and to certify the record to this court.
Pursuant to First Circuit
1993

order is

summarily affirmed.

Rule 27.1, the March 15,

Appellees'

damages and costs under Fed. R. App. 38 is denied.

Affirmed.
________

request for

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